Citation Nr: 0302142
Decision Date: 02/04/03 Archive Date: 02/19/03
DOCKET NO. 98-03 066A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a left wrist
disorder.
2. Entitlement to a compensable rating for a right wrist
disorder.
(The issues of entitlement to service connection for
temporomandibular joint and low back disorders and
entitlement to a rating in excess of 10 percent for the
residuals of a right knee medial meniscectomy will be
addressed in a later decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Douglas, Counsel
INTRODUCTION
The veteran served on active duty from September 1979 to July
1991. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a September 1997 rating
decision by the San Juan, the Commonwealth of Puerto Rico,
Regional Office (RO) of the Department of Veterans Affairs
(VA). Although the veteran asserts that he never incurred a
right wrist injury during active service and that instead a
left wrist injury was incorrectly reported, the issues listed
on the title page of this decision were fully developed on
appeal and have not been withdrawn from appellate review;
consequently, they must be addressed.
The veteran has raised an issue of entitlement to service
connection for a left knee disorder. This matter is referred
to the RO for appropriate action.
[The Board is undertaking additional development on the
issues of entitlement to service connection for
temporomandibular joint and low back disorders and
entitlement to a rating in excess of 10 percent for the
residuals of a right knee medial meniscectomy pursuant to the
provisions of 38 C.F.R. § 19.9(a)(2) (2002). When it is
completed, the Board will provide notice of the development
as required 38 C.F.R. § 20.903 (2002). After giving notice
and reviewing the appellant's response to the notice, the
Board will prepare a separate decision addressing these
issues.]
FINDINGS OF FACT
1. A left wrist disorder was not manifested in service and
is not shown to be related to service.
2. The veteran's service connected right wrist disorder is
asymptomatic.
CONCLUSIONS OF LAW
1. Service connection for a left wrist disorder is not
warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 &
Supp. 2002); 38 C.F.R. § 3.303 (2002).
2. A compensable rating for a right wrist disorder is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp.
2002); 38 C.F.R. §§ 4.1, 4.71a, Code 5215 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A.
§ 5100 et seq.) became law. Regulations implementing the
VCAA have also been published. 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a). The VCAA and implementing regulations apply
in the instant case. See VAOPGCPREC 11-2000.
The Board finds that the applicable mandates of the VCAA and
implementing regulations are met. Although the claim of
service connection for a left wrist disorder was initially
denied as not well grounded, the RO re-adjudicated and denied
the claim on the merits in a December 1999 supplemental
statement of the case (SSOC). The veteran and his
representative were notified of the VCAA provisions by
correspondence dated in February 2002, and the RO re-
adjudicated these claims in accordance with those provisions
in the February 2002 SSOC. These and other documents of
record adequately notified the veteran of the evidence
necessary to substantiate the matters addressed in this
decision and of the action to be taken by VA. As the veteran
has been kept apprised of what he must show to prevail in
these claims, what information and evidence he is responsible
for, and what evidence VA must secure, there is no further
duty to notify. See Generally Quartuccio v. Principi, 16
Vet. App. 183 (2002).
The VCAA requires that VA provide medical examinations or
obtain medical opinions when necessary for an adequate
decision. The veteran underwent a VA compensation
examination pertinent to these claims in July 1997. Medical
evidence sufficient for an adequate determination of the
matters addressed in this decision has been obtained.
Thus, the Board finds that with respect to the issues
addressed below, the duty to assist and duty to notify
provisions of the VCAA have been fulfilled, to include the
revised regulatory provisions of 38 C.F.R. § 3.159. The
veteran is not prejudiced by the Board's addressing these
issues based on the current record.
Service Connection Claim
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. § 3.303. In addition, service connection may
be granted for any disease diagnosed after discharge, when
all of the evidence, including that pertinent to service,
establishes the disease was incurred in service. 38 C.F.R.
§ 3.303(d). For the showing of chronic disease in service,
there are required a combination of manifestations sufficient
to identify a disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
chronic. Continuity of symptomatology is required only where
the condition noted during service is not, in fact, shown to
be chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
The Court has held that where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. Grottveit v. Brown, 5 Vet.
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App.
492 (1992).
A claim for service connection for a disability must be
accompanied by medical evidence that establishes that the
claimant currently has the claimed disability. Absent proof
of a present disability there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The
U.S. Court of Appeals (Federal Circuit) has also held that a
veteran seeking disability benefits must establish the
existence of a disability and a connection between service
and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
Service medical records are negative for complaint,
diagnosis, or treatment of a left wrist disorder. (However,
a July 1989 Report of Medical History notes that the veteran
was taking Motrin for left wrist tendonitis.) The veteran
specifically identified inservice treatment for a right wrist
disorder in his August 1991 application for VA benefits. A
VA examination in July 1997 produced a diagnosis of residuals
of injury to the left wrist with extensor carpi ulnaris
tendosynovitis and clinical ulnar nerve entrapment. The
veteran concedes that he injured only one wrist in service
(That point does not appear to be in dispute). What is in
dispute is which wrist sustained the injury. The veteran
alleges that it was the left (misidentified as the right).
In support of that allegation are his testimony to that
effect and the above-noted July 1989 Medical History
notation. Against that allegation are his initial
application for service connection (which claimed a right
wrist injury, and on which basis a right wrist disability was
service-connected) and all the service medical (clinical)
records of treatment for a wrist injury, including in August
1988, October 1988, December 1988, February 1989, and March
1989, which consistently refer to a right wrist injury. By
an overwhelming preponderance, these records, which are more
contemporaneous, establish that the injury in service was to
the right, not the left, wrist. There is no competent
evidence otherwise relating the present left wrist disorder
to service. Therefore, service connection is not warranted.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990). Here, the
preponderance of the evidence is against the veteran's claim.
Increased Rating Claim
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
It is the responsibility of the rating specialist to
interpret reports of examination in the light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability present. 38 C.F.R. § 4.2.
Consideration of factors wholly outside the rating criteria
constitute error as a matter of law. Massey v. Brown, 7 Vet.
App. 204, 207-08 (1994). Evaluation of disabilities based
upon manifestations not resulting from service-connected
disease or injury and the pyramiding of ratings for the same
disability under various diagnoses is prohibited. 38 C.F.R.
§ 4.14.
When there is a question as to which of two evaluations to
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating, otherwise the lower rating shall be
assigned. 38 C.F.R. § 4.7.
The Rating Schedule provides a 10 percent rating for
limitation of motion of the wrist, major or minor arm, when
dorsiflexion is less than 15 degrees or when palmar flexion
is limited in line with the forearm. See 38 C.F.R. § 4.71a,
Code 5215 (2002).
Service medical records dated in August 1988, December 1988,
and March 1989 show the veteran was treated for a twisting
injury to the right wrist. VA orthopedic examination in
November 1991 was negative as to the right wrist. On VA
examination in July 1997, the veteran, in essence, denied any
present symptoms related to a right wrist disability.
Although he requested a compensable rating for his service-
connected right wrist disability, in his statements and
personal hearing testimony he described symptoms only as to a
left wrist disorder and, in fact, denied he ever incurred a
right wrist injury. As there is no evidence of any present
symptoms of a right wrist disability, there is no basis for a
compensable rating; and the claim must be denied.
ORDER
Service connection for a left wrist disorder is denied.
A compensable rating for a right wrist disorder is denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.